Citation Nr: 1032865 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 06-27 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to October 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issues of entitlement to service connection for cervical spine and bilateral shoulder disabilities are addressed in the REMAND that follows the order section of this decision. FINDING OF FACT A right foot disability has not been present at any time during the pendency of this claim. CONCLUSION OF LAW A right foot disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with the notice required under the VCAA by letter mailed in October 2005, prior to the initial adjudication of the claim. Although the Veteran was not provided notice with respect to the disability-rating or effective-date element of the claim until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for right foot disability. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claim is no more than harmless error. The record reflects that service medical records, service personnel records, and VA treatment records as well as an examination report have been obtained. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contends that she has right foot pain which is related to an in-service stress fracture. The Board notes that the Veteran was treated in-service on a multitude of occasions for a right foot disorder beginning in August 1991 when she jumped off of a truck. The Veteran was additionally treated for right foot pain and symptomatology during September 1994, October 1994 and June 1995. During the 1994 treatment, the Veteran was diagnosed with a stress fracture at the base of the second metatarsal. During the 1995 treatment, the Veteran was assessed with a contusion versus tendonitis. Additionally, in August 1996 the Veteran was diagnosed with pes planus. The Veteran was afforded a VA examination during January 2006; however, the examiner indicated that the Veteran did not have a current right foot disability. The examiner noted that the Veteran had no limp, no tenderness, no erythema, no swelling, no warmth, full range of motion, no pain with manipulation, no callus, no evidence of abnormal weight bearing and no limits on walking. The Veteran did indicate that she had pain about once a week for half of a day which she treated with Tylenol. The findings on an X-ray examination of the right foot were unremarkable. The Board notes that VA treatment records were reviewed; however, the only notation of treatment for a right foot condition was during 2002 which is outside of the relevant period. The Board notes that there is no objective indication of a right foot disability at any time during the pendency of the claim, and the aforementioned VA examination disclosed that the Veteran's right foot is normal. It is important to point out at this juncture that pain is not in and of itself a disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001) (absent a disease or injury incurred during service, the basic compensation statutes cannot be satisfied). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Board acknowledges that the Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the preponderance of the evidence establishes that the Veteran has not had a right foot disability at any time during the pendency of this claim. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for a right foot disability is denied. REMAND The Board notes that the Veteran had a documented in-service injury involving her back and neck during active duty. In this regard, the Board notes that a September 1996 radiological report indicates that the Veteran had neck and shoulder pain since a motor vehicle accident during September 1995. Additionally, a September 1996 report of medical examination indicates that the Veteran had back and neck pain since a motor vehicle accident. The Board additionally notes that private treatment records indicate extensive treatment for the Veteran's back and neck disabilities to include a November 2004 report indicating degenerative disc disease with right-sided disc protrusion at C5- 6 which could impinge on the right C5 nerve root and shallow diffuse non-stenotic disc protrusion at C6-7. Thus, as the Veteran had an in-service injury with specific reports of subsequent shoulder and neck pain as well as an indication of post-service neck and shoulder problems, the Veteran should be afforded a VA examination. The Veteran should additionally be requested to indicate the facility at which she was treated for the in-service motor vehicle accident with submission of any necessary authorization to obtain relevant treatment records. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should request the Veteran to provide identifying information and any necessary authorization concerning any health care providers who treated or examined her for any of the disabilities at issue while she was on active duty to include where she was treated for her in-service motor vehicle accident. It should also request her to provide the identifying information and any necessary authorization to enable VA to obtain any post-service medical records, not already of record, pertaining to post-service treatment for or examination of any of the disabilities at issue. It should then undertake any additional indicated development to obtain any pertinent, outstanding evidence. The RO or the AMC should continue its efforts to obtain any pertinent, outstanding service medical records unless additional efforts would be futile. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of any current disorders of her shoulders and cervical spine. The claims folder must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the claims folder review and the examination results, the examiner should provide an opinion for each currently present disorders of the Veteran's shoulders and cervical spine as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. The rationale for all opinions expressed must also be provided. 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until otherwise notified, but the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court (CONTINUED ON NEXT PAGE) of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs